NEW YORK – The case of Abd al Rahim Hussayn Muhammad al-Nashiri was officially referred for trial by military commission at Guantánamo Bay today. The charges approved by the commissions' Convening Authority include the possibility of the death penalty. No capital case has been completed by the Guantánamo military commissions.

Al-Nashiri, who was tortured while in U.S. custody, is accused of planning the 2000 bombing of the U.S.S. Cole. According to news reports, much of the evidence that will be used to prosecute him is based on hearsay or is circumstantial, and would be inadmissible in a federal court.

Denny LeBoeuf, director of the ACLU Capital Punishment Project, said, "Unlike federal courts, military commissions have unfairly lax rules for allowing evidence, except when it comes to torture – the commissions may admit coerced testimony, while evidence of the torture that produced it can be censored.

"All of our concerns about the inherent unfairness of the military commissions are compounded in cases like this one, in which the result could be death. The Constitution and international law rightly require enhanced protections in death penalty cases, but the military commissions have shown themselves to be unwilling or unable to provide those necessary measures."